Browsed byMonth: July 2015

This year the Dogbox.com Project 2015 took place at Tygervalley Shopping Centre in honour of Mandela Day. We had 67 minutes to paint dog boxes. The completed boxes each received a bag of dog food and a warm blanket for its new owner.

This gift is donated to a charity of your choice. Dogbox.com plan to host another project in September at the Centre.

Like last year, MHI’s girls were up for the challenge!

MHI entered 8 teams and UltraPro supplied the paint, rollers and brushes again this year. They also sponsored another 4 boxes and we quickly put more teams together.

And then we are proud to announce that MHI and Realty1 are the sponsors of the new and exciting Northern Hills magazine – a creation and product published by Paramount Media Pty Ltd situated in Cape Town.

The establishment and operation of a new sectional title scheme is regulated by the Sectional Titles Act No. 15 of 1985 (“the Act”). The Act contains strict requirements that must be met in order for a sectional title scheme to be opened in a Deeds Office and subsequent transfers of units in the Scheme to end buyers take place. For purposes of this article it is assumed that the opening of the sectional title scheme and transfers to end buyers will take place simultaneously in the Deeds Office.

The content of the agreement is an outline of specific events that must take place before you can become the owner of a unit. The latter is a good indication of how long you have to wait before you can harness the removal truck.

Special attention should be given to the following conditions precedent that may appear in the purchase agreement:

1. Is the existence of the development subject to the sale of a specific number of units (pre- sales) before the development is considered viable? This condition usually stipulate that the agreement between the parties will only continue if the Seller could succeed with the sale of a certain amount of units in the development by a specific date.

Is the agreement subject to obtaining development financing by the Seller/developer by a certain date? Therefore envisages the Seller to apply for financing from a financial institution to, inter alia, finance the construction of the buildings which the Scheme will consist of?

Non – compliance of the conditions precedent within the prescribed periods means that a valid purchase agreement between the parties was not established and the agreement has lapsed. The dates referred to in the said conditions precedent is an indication of when the Seller intends to proceed with the development full steam, as the latter will only be possible after the fulfillment of said conditions precedent.

Other important clauses that indicate the passage of time are the following:

The planned date of registration of the Scheme in the relevant Deeds Office;

The planned date of occupancy of the unit by the Purchaser, and whether it corresponds with the date of registration of the unit.

The Purchaser should note that the Seller/developer can only start with construction of the buildings after development funding is secured, and accordingly from the date of fulfillment of the conditions precedent. Depending on the extent of the development it can take months before construction is completed, and occupation certificates for the Units are issued by the Municipality.

Pursuant to section 6 of the Act, the land surveyor can only start site measurements to draft sectional plans for the new Scheme after the buildings have been completed as the draft sectional plan is prepared from an actual survey of the buildings. After surveying and completion of the draft plans, they are sent to the Surveyor General for approval in terms of section 7 of the Act, which process can take approximately 4 – 6 weeks on average.

Only upon receipt of the approved sectional plans from the Surveyor General, the processing of transfer documents by the conveyancers can begin. The conveyancer requires originally approved sectional plans for the processing of the transfer documentation as the actual sizes of units as reflected in the said plans must be used.

The conveyancer must send the approved sectional plans upon receipt thereof to the local municipality (within whose jurisdiction the Scheme will fall), so that the municipality can list the new Scheme, as well as record each unit within the Scheme on their system. This process is essential to ensure that every owner of a unit receives an account from the municipality after registration of the Scheme. It is also compulsory for obtaining a rates clearance certificate from the Municipality without which registration of the Scheme will not be possible.

It is clear from the above that the groundwork for the opening of a Scheme alone may take several months depending on how long the construction of the buildings of the Scheme, the duration and the time period before sectional plans are approved and the listing of units on a municipal system is recorded. Only after the occurrence of the above, the normal transfer process between the seller and the end buyer can commence.

It is recommended that the Purchaser also pay attention to the following conditions in the purchase agreement:

Whether the Purchaser will acquire a parking bay together with the purchase of a unit , and if so, whether the parking bay will be registered as a separate notarial exclusive use area or whether it will be dealt with under Section 27A of the Act and awarded to the unit by the developer in the rules of the Scheme;

Whether the Seller/developer reserved for himself a future right of extension of the Scheme. The Purchaser is in such case entitled to review the plans for future extension of the Scheme;

Whether the Seller intends to develop the development in phases, so that it can be established what facilities that form part of the development, will only be completed in a later phase.

It is clear from the above that the registration of a unit that is part of a new sectional title scheme development form part of a lengthy process and buyers would be wise not to be in a hurry to move in.

REFERENCE LIST:

The Sectional Titles Act 95 of 1986

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

Where the Contract of Lease is breached in any way by the tenant and he or she after receiving notice thereof has not remedied such a breach within the period agreed upon, then the landlord may cancel the contract. The tenant will be found to be an illegal occupier in this instance.

Where a tenant fails to perform as agreed upon in his Lease agreement, he will be found to be in breach of that agreement. An example of this is a failure to pay rent timeously or at all. The landlord must notify the tenant in writing of his decision to terminate the contract by means of a letter of cancellation, allowing the tenant a reasonable period, or such timeframe as agreed upon in terms of such a lease, to vacate the property.

If the tenant chooses to ignore the notice of cancellation of the lease agreement by remaining on the property and continuing to use and enjoy it, the tenant will be regarded as an illegal occupier of the property. The same applies if the tenant continues to occupy the property after the expiration of the initial lease period. An illegal occupier may be evicted from the rented property by the landlord or owner. This will be done at a Magistrate’s or High Court and for that the services of a lawyer will be required.

There is no longer a Common Law right to evict someone. Instead the owner or landlord must follow the procedures and provisions of the Prevention of Illegal Eviction and Unlawful Occupation of land Act 19 of 1998 (hereinafter referred to as the “PIE Act”). The tenant must be notified of the pending action, by means of a Notice of Intention to Evict and this must be done at least 14 days before the date of the court hearing. This notice must also be sent to the respective Municipality involved.

On the date of the hearing, the court will consider factors such as whether the person is an unlawful occupier, whether the owner has reasonable grounds for eviction and alternative accommodation available to the tenant. It is now considered a criminal offence to evict someone without a court order to that effect. Constructive eviction, for instance, where a landlord cuts the water or electricity supply to the property in order to “drive” the tenants out, is a criminal offence.

The type of action or application that your legal representative will bring will vary depending on the facts and circumstances of the matter. Such actions or applications can be heard in the Magistrate’s or High Court, depending on the value of the occupation and not the leased property value. The lease agreement may also have a clause embodied in it where the parties agree to a particular court’s jurisdiction, where upon that will be followed. If the court proceedings are successful a Warrant of Ejectment may be issued, whereupon the owner or landlord may proceed with the eviction of the illegal occupier.

Once the owner or the proprietor of the leased property has followed all the prescribed procedures as laid out in the PIE Act and they have established that their tenant is considered an unlawful occupier then they may proceed with the above-mentioned steps in order to evict them from their property.

An unlawful occupier may be removed from the premises upon the instruction of an Eviction Order / Warrant of Eviction with the assistance of the Sheriff of the respective court at a minimal fee. The steps laid out in the PIE Act are simple to understand and follow allowing a transparent and fair chance to both the landlord and the tenant in these difficult situations.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

In this article, we examine whether contracts entered online by minors, using their parents’ credit cards, are legally binding in the specific context of social media such as Facebook.

Both Common law and legislation deal with the capacity of minors who enter into different types of contracts. According to the Children’s Act, 38 of 2005 a minor is a person between the ages of seven and 18 years. In terms of common law a minor does not have sufficient capacity to incur binding obligations under a contract and must obtain the assistance or consent of their guardian to do so. This consent can be given before the contract is concluded or thereafter, in which case it is seen as ratification of the contract. There are exceptions to this rule, which may be found in various pieces of legislation as well as in common law, such as contracts where the minor obtains only rights and no duties (e.g. a donation).

A minor can escape liability even when they have been bound in terms of the contract (i.e. where the guardian has assisted the minor in the conclusion of the contract, consented to or ratified the contract). This can be done where the contract was prejudicial to him or her at the time that it was concluded. The court may then, on application, set the contract aside and order that each party be placed in the same position as what they were in before the contract had been concluded.

Facebook is currently involved in an ongoing class-action lawsuit. In this lawsuit, a class of parents in America are pressing their claim that Facebook should change how it handles online transactions by minors.

Attorneys for the parents in the above case note that it is important that Facebook has knowledge of a user’s actual age but still treats children the same as adult users when it comes to taking their money.

One of the biggest issues here is that reciprocal performance, being the payment of money via credit or debit card and the child obtaining credits, takes place almost immediately. Therefore, if the parent were to be refunded, the minor would be unjustifiably enriched using the credits.

The system, that Facebook currently employs, is therefore problematic since it takes advantage of children who may not fully understand the contracts that they are entering into when they purchase game credits. Furthermore, should the parents be immediately refunded in the current system, it may lead to situations where the parent consents to the purchases and then after the child obtains the enjoyment from the credits, request that their accounts be credited due to a ‘lack of consent’.

It is therefore clear that this system of payment should be changed. We should obtain clarity on how to deal with this in South Africa once the class-action suit in America has been concluded and a solution has been reached. At present, it seems that there will be no alternative for parents whose children overspend or use their credit or debit cards, without permission. If your child has, a Facebook gaming habit it is a good idea to keep a close eye on your wallet until we have clarity on the recourse available to parents who find themselves in this situation.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.